Friday, September 09, 2011Last Update: 7:12 AM PT

Google Says Copied Code Means No Infringement

SAN FRANCISCO (CN) - Google urged a federal judge to dismiss a patent-infringement case alleging that it copied Oracle's Java code, arguing that the code installed on Android devices came from foreign device makers. It is "undisputed" that Google makes Android software available to foreign manufacturers through download only, Google attorney Robert Van Nest noted. He claims that "downloading the software necessarily requires the foreign manufacturer to copy it." The copy loaded onto the foreign-made device is not supplied by the United States. The U.S. Supreme Court held in Microsoft Corp. v. AT&T Corp. that it is not patent infringement when allegedly infringing software supplied from the United States to device makers in foreign countries must be copied by those manufacturers before it can be loaded onto the devices, according to Van Nest's brief. Google said its workers made Android binary and source codes available for download to foreign manufacturers, and neither code is available in any physical medium. The manufacturers then downloaded the codes, which "necessarily involves copying it - otherwise the code would disappear from the website after the first download," according to the brief. "Thus, foreign device manufacturers have to copy Android code before loading it onto their devices." Google stressed the similarities between its case and Microsoft v. AT&T. The Supreme Court had reasoned that, because Microsoft "does not export from the United States the copies actually installed, it does not 'suppl[y] ... from the United States' 'components' of the relevant computers, and therefore is not liable" for patent infringement, the brief states. Van Nest, a partner with Keker & Van Nest in San Francisco, further argued that Android software remains an "idea without physical embodiment" and not a "combinable" component of a device until it is "expressed as a computer-readable copy." Since foreign manufacturers have to download the software, and downloading it necessarily copies it, the copies are not actually supplied from the United States. Just as in Microsoft, "the copies did not exist until they were generated by third parties outside the United States." And a "copy made entirely abroad does not fit the description 'supplie[d] ... from the United States." Google also moved to strike portions of an expert report submitted by Oracle that identified products and files, not previously disclosed to the court, as central to its patent-infringement allegations. Google said this tactic circumvented local patent rules and ignored the court's warning that it must fully disclose its infringement theories in its Disclosure of Asserted Claims and Infringement Contentions.